Day on Torts

November 7, 2014

Offer of Judgment Cannot Be Revoked During 10-Day Window

The Tennessee Court of Appeals recently took up a civil procedure issue of first impression in the state. In McGinnis v. Cox, No. M2014-00102-COA-R3-CV (Tenn. Ct. App. Oct. 31, 2014), the issue presented was“[w]hether a Rule 68 offer of judgment may be revoked by the offeror within the ten-day time period for acceptance on the basis that the offeror ‘changed his mind.’” Following the weight of authority from federal and other state courts, the Court held that offers of judgment under Rule 68 are generally not revocable prior to the ten-day window expiring.

The McGinnis case arose from a car accident, and though no answer was ever filed, plaintiffs presented defendants with an offer of judgment for a specified amount or the policy limits of the applicable insurance policy. It was undisputed that the offer of judgment was made pursuant to Rule 68. There was some discrepancy between the date on the certificate of service and the date the offer was actually mailed, but defendants’ counsel received it on March 13, 2013. Counsel for both parties spoke two days later and agreed to forgo the deadline due to the postposed mailing. On that same day, however, plaintiff’s counsel faxed defendants’ counsel stating that the offer of judgment was revoked. The basis of this purported revocation was that the plaintiff had changed his mind. Subsequently, but on the same day and well within the ten-day time frame, defendants responded by fax that they accepted the offer of judgment in the amount of the policy limit. As there were no allegations of fraud or other good cause, the trial court found that the offer of judgment could not be revoked and thus granted a motion to enforce the judgment. The Court of Appeals affirmed.

In analyzing the issue, the Court determined that “the failure to include a provision allowing revocation [in Rule 68] is indicative of an intent not to allow revocation within the ten-day time period for acceptance.” The Court stated that adding a revocation provision would “deprive the offeree of the ten days to consider the offer of judgment the offeree was clearly intended to possess pursuant to Rule 68’s plain language.” The Court emphasized that the 10-day window was needed to give the offeree an appropriate amount of time to consider the offer, as rejecting such an offer subjects the offeree to certain risks. Allowing revocation would give the offeror the ability to force the offeree into a hasty decision.

November 3, 2014

Health Care Liability Claim under GTLA Entitled to 120-Day Extension of Statute of Limitations

by The Law Offices of John Day, P.C.

In Harper v. Bradley County, No. E2014-COA-R9-CV (Tenn. Ct. App. Oct. 30, 2014), the Tennessee Supreme Court clarified one aspect of the interplay between the Health Care Liability Act (“HCLA”) and the Governmental Tort Liability Act (“GTLA”). The Court held that under the current version of the HCLA, health care liability actions against governmental entities are entitled to the 120-day extension of the statute of limitations provided by Tenn. Code Ann. § 29-26-121(c).

To reach its decision, the Court relied heavily on Cunningham v. Williamson County Hosp. Dist., 405 S.W.3d 41 (Tenn. 2013). In that case, the Tennessee Supreme Court found that the 120-day extension did not apply to medical malpractice claims arising under the GTLA. The Cunningham Court noted that “in the absence of specific statutory language permitting extension of the GTLA statute of limitations, …statutory provisions inconsistent with the GTLA may not extend the applicable statute of limitations period.” Despite its holding, the Supreme Court pointed out in a footnote that the legislature amended the HCLA in 2011 to modify the definition of “health care liability action” to include “claims against the state or a political subdivision thereof.”

In the Harper case, the plaintiff’s claim arose after the effective date of the 2011 amendments. Thus, the Court of Appeals was tasked with determining whether the 2011 language change required a different outcome regarding applicability of the 120-day extension. The Court noted that the 2011 language changes “for the first time, expressly brings governmental entities…within the ambit of the HCLA.” Accordingly, the Court held that “the 2011 amendment, now codified at Tenn. Code Ann. § 29-26-101, clearly expresses a legislative intent to extend the statute of limitations in GTLA cases where the plaintiff has met the procedural requirements of the HCLA.”

November 2, 2014

The “Made-Whole” Doctrine in Tennessee

by The Law Offices of John Day, P.C.

My law review article, "’Made-Whole" Made Fair: A Proposal to Modify Subrogation in Tennessee Tort Actions," is among the top ten down loads in its category on the Social Science Research Network.

Here is an abstract of the article:

This Article proposes the adoption of the “Modified Made-Whole Doctrine Proposal." Part I begins by explaining the roots of the law of subrogation rights and its current jurisprudential inconsistencies. It also explores the relationship between such subrogation rights and the made-whole doctrine in the context of Tennessee tort law as well as how this doctrine would be applied in Tennessee today. Part II briefly outlines some of the general questions regarding Tennessee’s current application of the made-whole doctrine, particularly the unresolved issues surrounding the impact of comparative fault on subrogation rights. These are questions which the author’s suggested Proposal is designed to directly address. The detailed framework of this Proposal, including its five fundamental Principles and their underpinning rules, are set forth at length in Part III. Finally, Part IV concludes by analyzing the practical application of this Proposal throughout the various stages of the litigation process and offers guidance to judges, attorneys, and litigants alike as to how such subrogation disputes can be equitably resolved. In sum, the Modified Made-Whole Doctrine Proposal is meant to provide for the efficient, just application of the made-whole doctrine to subrogation interests with respect to Tennessee’s law of comparative fault.

October 26, 2014

Tennessee Law of Civil Trial – Book Review

by The Law Offices of John Day, P.C.

Jason Lee has reviewed my book, Tennessee Law of Civil Trial, on his Tennessee Defense Litigation blog.

Some highlights:

The way I would characterize this book is it is a practical guide to the ins and outs of trial practice. There are citations to case law throughout the book that can be used to prepare for issues that may come up at trial.

October 23, 2014

Reasoning Required in Tennessee Trial Court’s Summary Judgment Order

by The Law Offices of John Day, P.C.

In Potter’s Shopping Center, Inc. v. Szekely, No. M2014-00588-COA-R3-CV (Tenn. Ct. App. Oct. 8, 2014), the Court of Appeals relied on the recent Tennessee Supreme Court decision of Smith v. UHS of Lakeside, Inc., 2014 WL 3429204 (Tenn. 2014) to hold the trial court to a higher standard when entering an order granting partial summary judgment.

The Potter’s Shopping case involved the building of a house and a claim for unjust enrichment by the supplier of materials against the owners of the home. The trial court granted partial summary judgment to plaintiff as to liability, but in its order, the court failed to state any legal grounds for its decision. Citing the Supreme Court’s Smith opinion, the Court of Appeals found that the trial court had failed to comply with Tenn. R. Civ. P. 56.04 when it failed to cite any evidence or argument it had considered in granting summary judgment. The Court noted that appellate courts were sometimes more lenient on this issue when the reasoning for the summary judgment could be gleaned from the record. In the present case, however, the record contained no transcript of the hearing and no other indication of the legal basis for the summary judgment decision.

Finding that the summary judgment issue “involve[d] questions of law that require analysis and explanation,” the Court vacated the order granting partial summary judgment and remanded the case.

October 21, 2014

Orders on Motions for Summary Judgment – Rubber-Stamping Not Allowed

by The Law Offices of John Day, P.C.

This summer the Tennessee Supreme Court offered guidance on what a trial court must do when granting or denying a motion for summary judgment under Tenn. R. Civ. P. 56.04. Despite the longstanding practice of many courts to have a prevailing party draft and submit a proposed order, the Court emphatically expressed that the record must show that an order granting or denying summary judgment was the product of the trial court’s “independent judgment.”

In Smith v. UHS of Lakeside, Inc., No. W2011-02405-SC-R11-CV (Tenn. July 15, 2014), plaintiff’s complaint listed multiple causes of action related to the alleged improper assessment and resulting delayed treatment of decedent. During lengthy pre-trial litigation, defendant moved for summary judgment as to all of plaintiff’s claims. After a hearing, the trial court ruled in favor of plaintiff on some claims and defendant on two claims. After orally announcing the direction of the ruling, the trial court stated: “As far as a basis for the ruling, I’m going to let [defendant’s counsel] make those…the motions in which you were successful, you’ll prepare the order and the rationale for the Court’s ruling.”

Plaintiff later filed an amended complaint, and defendant again filed a motion for summary judgment as to all claims. This time the trial court granted defendant’s motion in total and stated, “I’m directing the defendant to prepare the order and to establish the rationale for the court’s ruling in quite specific detail[.]” Both orders submitted by defendant and signed and entered by the trial court were highly detailed, essentially adopting all of defendant’s arguments from its brief. After the entry of each order, plaintiff objected to the orders arguing that the orders contained rulings and findings that the trial court did not actually make.

October 20, 2014

Strip Club Murderer Loses Appeal

by The Law Offices of John Day, P.C.

The case of Jernigan v. Hunter, No. M2013-01860-COA-R3-CV (Tenn. Ct. App. Sept. 30, 2014) begins in January 2006, when John Jernigan was stabbed and beaten to death by two men, a father and son, inside a Nashville strip club. Father pleaded guilty to voluntary manslaughter in his criminal proceeding, and son pleaded guilty to the lesser charge of aggravated assault.

Thereafter, Jernigan’s parents filed a wrongful death lawsuit against father and son, both of whom defended themselves during a bench trial. The trial court found that Jernigan’s parents had proved by a preponderance of the evidence that father had directly and intentionally contributed to Jernigan’s death by stabbing him multiple times. However, due to conflicting evidence, the trial court ruled that parents did not prove that the son had caused or contributed to Jernigan’s death. Accordingly, the court awarded Jernigan’s parents $250,000 in damages against the father and dismissed the son. The father appealed and represented himself again.

The appellate court’s opinion classified father’s arguments on appeal into three categories: evidentiary issues, legal issues, and issues first raised on appeal.

October 16, 2014

NEJM Study on Defensive Medicine

by The Law Offices of John Day, P.C.

From the American Association for Justice:

The New England Journal of Medicine published a new study on the effects of tort reform on emergency room department treatments. The researchers examined Medicare emergency room fee-for-service claims data from 1997-2011 in Texas, Georgia and South Carolina, all of which changed their emergency care liability standard from negligence to gross negligence. They found that such reforms did not change doctors’ testing behaviors and that "physicians are less motivated by legal risk than they believe themselves to be."

"We did not find evidence that these reforms decreased practice intensity, as measured by the rate of the use of advanced imaging, by the rate of hospital admission, or in two of three cases, by average charges. Although there was a small reduction in charges in one of the three states (Georgia), our results in aggregate suggest that these strongly protective laws caused little (if any) change in practice intensity among physicians caring for Medicare patients in emergency departments."

October 11, 2014

Recent Tennessee Jury Verdicts

by The Law Offices of John Day, P.C.

Here are the verdicts collected by the October, 2014 Tennessee Jury Verdict Reporter:

Health Care Liability – epidural steroid injection with back injury – June 27, 2014 – defense verdict in state court in Davidson County
Abuse of Process – photographer arrested – August 22, 2014 – defense verdict in federal court in Hamilton County
Pedestrian – child pedestrian hit by car – May 14, 2014 – defense verdict in state court in Shelby County
Car Wreck – disk herniation – February 14, 2014 – $50,313 in state court in Knox County
Pedestrian – adult pedestrian hit by car in crosswalk – April 16, 2014 – defense verdict (50-50 fault allocation) in Davidson County
Car Wreck – soft tissue injuries – April 15, 2014 – $3600 in state court in Shelby County
Excessive Force by Police – facial injuries – August 29, 2014 – defense verdict in federal court in Davidson County
Car Wreck – soft tissue injuries – March 13, 2014 – defense verdict in state court in Hamilton County
Car Wreck – soft tissue injuries – August 16, 2014 – $15,000 verdict in state court in Davidson County
Sip and Fall – wrist and knee injuries – August 14, 2014 – defense verdict in federal Court in Greenville
Car Wreck – soft tissue injuries – May 22, 2014 – defense verdict in Shelby County
Car Wreck – knee injury and low back pain – May 14, 2014 – $12,940 verdict in state court Davidson County ($40,000 offer of judgment rejected)

Full details on each of these jury verdicts can be obtained from the Tennessee Jury Verdict Reporter.

October 10, 2014

Trial Court’s Evidentiary Rulings Given Great Deference on Appeal

by The Law Offices of John Day, P.C.

In Bilbrey v. Parks, No. E2013-02808-COA-CV (Tenn. Ct. App. Sept. 29, 2014), a negligence case arising from a car accident, the Court of Appeals recently addressed two evidentiary issues. Plaintiff, her aunt, and her boyfriend were in plaintiff’s car when it ran out of gas. The car was pushed onto the side of the road, though not completely off of it. While the boyfriend and aunt had gone to get gas, defendant came along and collided with plaintiff’s car. The incident occurred at night. Plaintiff brought a negligence action against defendant, and defendant counterclaimed asserting plaintiff’s negligence. At trial, the jury found both plaintiff and defendant to be 50% at fault. Subsequently, plaintiff appealed two evidentiary rulings made by the trial court.

First, plaintiff asserted that the trial court should not have allowed the boyfriend’s deposition to be read into evidence by defendant. Plaintiff pointed out that defendant had not subpoenaed boyfriend within the timing specified by local rules, and more importantly, that the evidence presented to show that boyfriend was unavailable by being more than 100 miles from the courthouse was insufficient. The unavailability evidence was fraught with layers of hearsay, and boyfriends’“unknown, unproven, and in dispute.”’s deposition should not have been admitted, it was a harmless error, as the deposition testimony was “almost entirely consistent with, and cumulative to, that of”’s deposition and the in-court testimony of other witnesses did not result in the admission of the deposition being prejudicial to plaintiff.

Second, plaintiff objected to the testimony of a state trooper who listened to a voice mail from plaintiff to her boyfriend on plaintiff’s phone when he arrived at the scene. According to his testimony, plaintiff told her boyfriend on that message that the emergency lights had either gone out or were going low. In affirming the trial court’s decision to allow the trooper to testify regarding the voicemail, the Court addressed three major points. One, plaintiff and her boyfriend had both testified that the phones containing this message were either lost or destroyed. Defendant, therefore, could rely on Tenn. R. Evid. 1004 and did not have to produce the original recording. Two, although the trooper had never heard plaintiff’s voice prior to listening to the voicemail, he spoke with her soon thereafter and testified that he recognized the voices as the same. The Court found that this was enough to satisfy the voice identification requirements of Tenn. R. Evid. 901. Three, plaintiff asserted that this statement did not fall under the party-opponent admission exception to the hearsay rule as it was not a statement against plaintiff’s interest. The Court rejected this argument, noting that any statements by a party, whether against that party’s interest or not, may be used by the opposing party. Accordingly, the Court of Appeals affirmed the trial court’s judgment.